Effort to combat bullying would punish too much speech

The First Amendment’s protection for free speech seems fairly unlimited — an unambiguous provision included in just 45 simple words that begin with “Congress shall make no law …”

No intricate phrases, no flowery modifiers. We even have common way of restating the idea: “I can say what I want … I’m an American.” But that doesn’t mean there are no limits, restrictions or rules.

Words involved in criminal activity — say, solicitation for prostitution — are not protected speech. Defamatory statements are subject to legal action after being written or uttered, to make good the damage unfairly done. Words that carry no penalty when spoken at, say, high noon in the public square can prompt an arrest at 3 a.m. under a bedroom window. Seemingly innocuous words uttered repeatedly to an unwilling recipient reach the level of harassment.

And we cannot make “true threats” against another person. This particular exception to First Amendment protections seems simple enough. But even here we can have complex legal issues.

Case in point: a recent Arizona legislative proposal intended to combat cyberstalking and online bullying. Supporters say the proposed bill just revises existing law to include a new kind of media. But critics say it opens wide a door to potential constitutional violations by making it a crime to offend or annoy others.

No one is defending attacks on others via the Internet. Rather, critics of the measure say it fails to make important distinctions.

Groups ranging from booksellers to music companies to broadcasters have called on Arizona Gov. Jan Brewer, urging a veto of the bill. Lawmakers have since agreed to take another look at the legislation.

Among potential First Amendment issues that critics have identified:

The proposal fails to distinguish between harassing speech delivered one-to-one, such as in an e-mail or telephone call, and harsh or offending speech on a web posting intended for the public with no specific individual intended as a target.

The bill’s terms are vague or unexplained, leaving the possibility of prosecution for language that may be offensive but historically lacks the basis for criminal charges.

The potential to chill legitimate — if contentious — speech merits this second look by the Legislature.

Clearly the web provides ways for launching anonymous, unrelenting attacks against people — particularly young people. But the web also has provided new opportunities for people to air views outside the acceptable, mainstream order of things. Many online discussions include frank — and sometimes profane or lewd — speech, which while offensive is not in and of itself illegal.

A law that purports to parse and punish speech that gives rise to criminal conduct, but which is not intended to apply to merely crude behavior, ought to use specific language and terms that define exactly what it means.

Those 45 words that protect free speech deserve that kind of careful wording.

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.

The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

1 For All

1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

FIRST AMENDMENT CENTER ARCHIVES

State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.